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Insights into Editorial: Becoming a citizen could become easier for some

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Insights into Editorial: Becoming a citizen could become easier for some


 

Context:

The winter session of Parliament may see the government push for the Citizenship (Amendment) Bill of 2016.

The proposed law, which amends the original Citizenship Act of 1955, mandates that Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan will not be treated as illegal immigrants despite having entered India without valid documents.

They will not face deportation as illegal immigrants under the Passport (Entry into India) Act of 1920 and the Foreigners Act of 1946.

Illegal immigrants from these six communities from these countries are assured a smooth sail to citizenship over Muslims.

 

Highlights of the Citizenship (Amendment) Bill of 2016:

  • Under the Act, one of the requirements for citizenship by naturalisation is that the applicant must have resided in India during the last 12 months, and for 11 of the previous 14 years. The Bill relaxes this 11 year requirement to six years for persons belonging to the same six religions and three countries.
  • The Bill amends the Citizenship Act, 1955 to make illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, eligible for citizenship.
  • The Bill provides that the registration of Overseas Citizen of India (OCI) cardholders may be cancelled if they violate any law.

 

Key Issues and Analysis:

  • The Bill makes illegal migrants eligible for citizenship on the basis of religion.
  • This may violate Article 14 of the Constitution which guarantees right to equality.

 

  • The Bill allows cancellation of OCI registration for violation of any law. This is a wide ground that may cover a range of violations, including minor offences (eg. parking in a no parking zone).

 

Critics Views of Citizenship (Amendment) Bill of 2016:

  • Critics say it violates the basic tenets of the Constitution.
  • Here, illegal immigrants are distinguished on the basis of religion.
  • It goes against the fundamental right to equality under Article 14.
  • Article 14 applies equally to both citizens and foreigners.
  • The Bill would hamper, what the Assam National Register of Citizens seeks to achieve in the State.
  • NRC does not distinguish on the basis of religion/faith.

 

Whether differentiating on grounds of religion is a violation of Article 14?

The Bill provides that illegal migrants belonging to specified minority communities from Afghanistan, Bangladesh or Pakistan will not be treated as illegal migrants under the Act, making them eligible for Indian citizenship

These minority communities are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians. 

This implies that illegal migrants from these countries who are Muslims, other minorities who do not belong to the above groups (eg. Jews), or Atheists who do not identify with a religious group will not be eligible for citizenship

The question is whether this provision violates the right to equality guaranteed under Article 14 of the Constitution because it provides differential treatment to illegal migrants on the basis of their religion.

  • Article 14 guarantees equality to all persons, citizens and foreigners.

 

  • It only permits laws to differentiate between groups of people if the rationale for doing so serves a reasonable purpose.

 

  • The Statement of Objects and Reasons of the Bill does not explain the rationale behind differentiating between illegal migrants on the basis of the religion they belong to.

 

Wide ground for cancelling OCI registration:

Under the 1955 Act, an Overseas Citizen of India (OCI) cardholder’s registration may be cancelled if he violates a law for which he is:

  • sentenced to imprisonment for two years or more, and
  • within five years of his OCI registration. The Bill adds another ground for cancelling OCI registration, which is violation of any law of the country by an OCI. 

 

This means that even offences with:

  • lesser penalties, or
  • which have been committed after five years of registration could be covered under the Bill. This makes the earlier provision redundant.

This provision also grants the central government wide discretion to cancel OCI registration for a range of violations.  

This will include serious offences like murder, as well as minor offences like violation of a traffic law (such as parking in a no-parking zone or jumping a red light). 

The question is whether minor violations should result in cancellation of OCI registration, which may require an OCI who is staying in India to leave the country.

 

Way Forward: What lies ahead?

The Asom Gana Parishad (AGP), believes that the Bill is a threat to the cultural and linguistic identity of the people of Assam.

The Bill, if passed as law, would be challenged in the Supreme Court on the grounds of Article 14 and as a move to disturb the NRC process.

All Opposition parties, have opposed the idea of granting citizenship to an individual on the basis of religion.

It is also argued that the Bill, if made into an Act, will nullify the updated National Registration of Citizenship (NRC).

Instead of simply saying that members belonging to particular religion will be eligible for differential treatment, the bill should have laid down some general secular criteria (persecution history, history of migration etc.) which could, in principle, at least, be applied to all groups.

But the direct exclusion of Muslims from being eligible for this pathway under any circumstances makes the constitutional form and citizenship communal.